Although employers are cautioned to tread social media lightly, it can be a useful tool to confirm an injury or illness when an employee is claiming disability and/or FMLA.
In a case out of Tampa, an employee took FMLA and was also granted an additional 30 days leave to continue recuperation from a shoulder surgery. During that time off, the employee visited Busch Gardens twice as well as took a trip to St. Martin in the Caribbean. He allegedly could not come back to work because his doctor would not release him. When he did return, the employer investigated the employee and fired him. He sued for FMLA retaliation and lost.
In another situation, an employee took FMLA for extreme back pain. Yet her back pain apparently disappeared when the employee attended a music fest in which she had pictures taken of her dancing and playing Frisbee. The pictures were posted on Facebook. She was fired and sued for FMLA retaliation. Again, the employer won.
Now comes a Michigan case about another employee who was on workers’ compensation and FMLA leave simultaneously, yet posted questionable Facebook pictures. Sharrow started working in 1999 as an Associate Technician for S.C. Johnson. He was eventually promoted to Senior Technician.
In July 2015 Sharrow was experiencing foot and knee issues. Sharrow visited his physician and was diagnosed with a sesamoid fracture in his foot. The doctor gave him a note indicating he would be “off work 7/11 until 7/27 due to health problems.” At the time Sharrow provided the note, he also filled out a request for FMLA leave.
Sharrow was found in pictures with three other people on Facebook on July 19th with the caption “2015 Tim and Ed’s Golf Scramble Champs.” On July 25th Sharrow was found in pictures on Facebook with the caption “Tubing the Rifle River.” On July 29th, Sharrow returned to work with no restrictions.
The pictures eventually made the rounds in the company. In September, Sharrow was questioned by HR about his condition, and he stated that he had difficulty walking and climbing stairs. HR then showed Sharrow him the Facebook pictures. He admitted to the golfing and tubing, and stated he rode in a cart while golfing.
Based on the interview, the employer determined that Sharrow’s explanation of his physical limitations was inconsistent with his leave activities and recommended that Sharrow be put on Decision Making Leave (DML) for “Sick Benefit Fraud Violation,” which included the following:
. . . Any additional work performance issues during this time, including attendance, safety, quality, relationship imperatives, and work practices will result in termination per the Positive Discipline Guidelines.
Sharrow came back to work, but in November 2015 was caught sleeping on the job along with another employee. There were pictures taken by his supervisor. Sharrow denied sleeping on the job. He was fired for violations of S.C. Johnson policies. Sharrow then sued for FMLA interference and retaliation.
At the end of discovery, S.C. Johnson moved for summary judgement. The court found that Sharrow provided no evidence as to any discriminatory action by S.C. Johnson with respect to Sharrow’s FMLA leave. However, the court did find that the employer had reason to legitimately believe that FMLA and medical time off was abused, if not an outright false request. Further, the court pointed out that when Sharrow was fired for sleeping on the job, the coworker found sleeping with him was fired as well.
The takeaway from this case is that employees who misuse FMLA leave will likely be found out. HR should not be afraid, if investigating an FMLA fraud claim, to include checking out the employee’s social media pages to see if something contrary is posted.
Source: Sharrow v. S.C. Johnson & Son, Inc., No.: 17-cv-11138 (E.D. Michigan, 4/12/18); Dickinson Wright 5/29/18